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Secret recipe

"You wonder what could be said that wouldn't be in the public's interest to hear."

Allegheny County Health Department officials are once again trying to establish an A-B-C grading system to rate the cleanliness and safety of county restaurants. But as a new approach is being cooked up, the public is being told to stay out of the kitchen. 

The regulations are being crafted behind closed doors, by a working group that includes health experts and representatives of the restaurant industry. And while that working group has already held its first meeting — on Feb. 18 — no public notice was given for the meeting. Nor will there be any for any of the future meetings, say those involved. 

Ultimately, the proposals will be voted on by the full Board of Health, and the public will have chances to comment once the policy is crafted. But when it comes to actually devising the policy, says Ron Vorhees, interim head of the county health department, "The work-group meetings are not public because we need to have frank, open discussions." 

"Sometimes when you're trying to work on an important issue, closed meetings are the ways to do it," says Lee Harrison, who chairs the board of health and the new committee.

"They're talking about the [county's] health here," counters Kim de Bourbon, executive director of the Pensylvania Freedom of Information Coalition (PFIC). "You wonder what could be said that wouldn't be in the public's interest to hear. Shouldn't there be frank and open discussion on how restaurants are going to be inspected? It's just too easy for things to be hidden from the public when stuff goes on behind closed doors."

Supporters of the new process say they're trying to avoid a repeat of the previous attempt to establish standards, which collapsed in 2011. 

That proposal sought to replace the pass/fail health department inspection with one where restaurants would be required to publicly post scores based on a points-system awarded by the department inspectors. But when the late Bruce Dixon, who headed up the Board of Health at the time, released his proposed rules for public comment, restaurant owners opposed them bitterly. The full health board eventually voted the measure down.

 "The lines were drawn," says William Youngblood, vice-chair of the county's board of health and a committee member. "This is not something I want to polarize the community with."

Kevin Joyce, owner of the Downtown restaurant The Carlton, who fought the idea of restaurant grading two years ago, says he's optimistic there will be compromises.

"We're going to continue to suggest that [the department of health] get more support from a budget standpoint," he says, explaining that his main objections to the new policy were that the inspection department was understaffed and undertrained. "We'll see where this goes." 

The 12-person task force includes four health board members: Joining Harrison and Youngblood are board members Joan Cleary, a former county councilor, and Tony Ferraro, a business-development executive for Reinhart FoodService in Mt. Lebanon. There are also five industry representatives: Brooks Broadhurst, of Eat'n Park Hospitality Group; Doug Wells, of Giant Eagle; John Graf, of the Western Chapter of the Pennsylvania Restaurant Association and the Priory Hospitality Group on the North Side; Vince Sanzotti, of the St. Clair Country Club; and Judy Siebert, of Sieb's Pub in Ross Township. 

The remaining board members include County Councilor John Palmiere and Virginia Dato, who works in the Pennsylvania Department of Health and helped trace the spread of Hepatitis A in local Chi-Chi restaurants in 2003. 

Harrison, who was the lone vote in favor of the 2011 restaurant policy, says he's comfortable with meeting behind closed doors. And he credits Allegheny County Chief Executive Rich Fitzgerald with helping to keep the idea alive. 

"I view the grading system as a win-win," he says. "It's a way to provide incentives to restaurants to basically have safe restaurants. It's also a way to show the public they are a safe place to eat."

But at least one person who has been through this before can see a downside: a repeat of the controversy surrounding the county's recently released air-quality standards, whose meetings were also closed to the public before the recommendations were released. 

 "If it can't pass the light of day, I think there's issues," says Bob Orchowski, chair of the regulation subcommittee for the Health Department's Air Quality Advisory Committee.

Chip Babst, an attorney with the firm Babst Calland who also serves on the air-quality board, disagrees.

"I think sometimes, when you're trying to look at something that is part technical and part emotional, it can be good to get a fairly bipartisan look at it and then bring it out for people to look at," he says. The new air-quality rules didn't give everybody what they wanted, he says, but they were an improvement over the outdated regulations previously in effect.

"The process seemed to have worked," he says. 

Generally speaking, deliberations of public policy are governed by the state's Sunshine Act, which requires that citizens "have notice of and the right to attend all meetings of agencies at which any agency business is discussed or acted on." The law applies to "all committees" of agencies as well. 

"The law is quite clear that any discussion of agency business of any policy or regulation must be done in public," says Michael Berry, vice president of the PFIC and a media law attorney. 

The Health Department is relying on the fact that the task force only includes four members of the nine-member Board of Health. For a meeting to be official, it must have a quorum, or majority, of members. 

In a memo drafted Feb. 12 in response to questions from City Paper, health department solicitor Henry Miller wrote: "Advisory committees that ... formulate policy and render advice to the Board of Health on matters of concern are likely to be covered by the Sunshine Act." But he adds, "the central issue here ... is the fact that there is less than a quorum present."

"They often will load these committees with one board member shy of the quorum just to skirt the intent of the law, which is to have these meetings be open," says de Bourbon, of the PFIC, who says the strategy is not uncommon.

And Berry acknowledges that citizens may have little recourse.

 "The Sunshine Law is very strong on what should be open," he says, "but very weak on enforcement mechanisms."